Weekly Training Tip: Marijuana and Multifamily Properties

Grace Hill Training Tip of the Week

When Federal and State Laws Conflict: Marijuana and Multifamily Properties

Editor’s Note: Grace Hill worked with our attorneys at Haynsworth Sinkler Boyd on this piece. We are grateful for their insights and expertise in navigating this tricky topic!

Marijuana possession is illegal under federal law. Pursuant to the Controlled Substances Act, it is classified as a Schedule I substance, which are defined as drugs with no currently accepted medical use and a high potential for abuse. According to the Office of National Drug Control Policy, marijuana is the most commonly used illicit drug in the United States.

Multifamily housing providers are generally permitted to prohibit the use or possession of marijuana as part of a smoke-free policy, but consider being explicit about marijuana in your smoke-free policy.

However, thirty (30) states plus the District of Columbia have legalized marijuana either for recreational or medicinal uses. This conflict between federal and state law creates confusion in the multifamily property management industry.

As you face questions about marijuana use, it may help to keep in mind that federal law supersedes state law. Among other things, this means that you are not obligated to “permit” breaking federal law to allow a resident to do something that is legal under state law. Here are two implications of this for multifamily properties.

Multifamily housing providers are generally free to prohibit the use or possession of marijuana as part of a smoke-free policy, even in states where recreational or medical marijuana use is allowed (but see below explanation regarding accommodations). Consider being explicit about marijuana in your smoke-free policy. Articulate a clear enforcement plan and apply the policy consistently to all prospects and residents to avoid discrimination claims.

Also, under the Quality Housing and Work Responsibility Act of 1998 (QHWRA), many HUD-assisted housing owners must deny admission to assisted housing for any household with a member determined to be illegally using a controlled substance. The QHWRA also permits owners to evict current residents for their use of marijuana.

If you receive a request for an accommodation for medical marijuana use based on a tenant or applicant’s disability, you should proceed carefully. The law on this issue is evolving rapidly, and it is advisable to seek legal counsel on these requests. The FHA is clear that a disability “does not include current, illegal use of or addiction to a controlled substance.” However, a tenant may be taking medical marijuana to treat a condition that is considered a disability.

Even if a person has a recognized disability, there are reasons that an accommodation to smoke marijuana might not be considered “reasonable.” For example, an accommodation that allows conduct in violation of a federal law constitutes an undue burden.Further, other problems exist such as second-hand marijuana smoke traveling through ventilation systems and bothering residents in common areas. However you proceed, be consistent with all prospects and residents in similar situations.

This is just the tip of the iceberg on this topic, and a lack of relevant case law makes it tricky to navigate. The courts will likely address this issue in the coming years and provide some clarity. Until then, consider your policies carefully, and err on the side of consulting an attorney as you face marijuana-related issues at your multifamily properties.

October 11 2018

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